Wednesday, 8 June 2011

FAST: software rights-holder group listening to all sides of #deact debate... Really!

When I heard that a group representing the interests of software rights holders, the Federation Against Software Theft, was hosting a legal seminar to discuss issues relating to copyright I had rather dark visions of a cluster of lawyers concocting the most fee-intensive solution to enforcing intellectual property (IP) rights online.

The agenda was interesting, and I wanted to hear what they had to say:

Online IP enforcement, by enforcement firm MarkMonitor (owner of DtecNet) - used by the MPAA, movie studios and many other rights holders to detect, monitor and tackle online IP infringement

But FLAG - the FAST Legal Advisory Group - were charging non-members a not-inconsiderable entry fee. My views on copyright enforcement and particularly the Digital Economy Act well-known, I doubted my speculative request for a free ticket would yield results.

The fact that FAST responded with an invite is notable in itself, as was their approach to the seminar.

FAST seem to be making a substantial effort to avoid the artillery approach of the BPI, MPAA, IFPI and other notable rights-holder representatives that lead to serious entrenchment in the debate on reducing piracy; or, as I like to call it, developing new models to reward content creators.

Their attitude is perhaps grounded by their membership. I was told many smaller members can't afford access to legal remedies; it costs around £750,000 to mount a reasonably straightforward challenge to a patent (source: Gowers report, 2006).

Perhaps more importantly, it can cost £1m to defend a business against an unjustified infringement claim (The Enforcement of Patent Rights, IPAC 2003), which lead to evidence cited in Gowers (pp8.61) suggesting smaller businesses sometimes find it easier to pay licensing fees on a patent they believe to be invalid than mount a court challenge.

Essentially, many smaller software businesses are open to discussion on IP and how best to protect property rights online (... develop new models to reward content creators!!).

Whilst the presentation from DtecNet/MarkMonitor was pretty much centred around the standard "infringement is theft"/strong enforcement model, even their presentation included a couple of conciliatory references to those who believe in weaker ownership models or that cultural works like music are viewed by some as a shared commons.

DtecNet offer a complete brand IP and reputation management service, from tracking cyber-squatters to identifying and prosecuting infringement; although they were quick to point out that prosecution was advised as a last resort.

The IPO presentation on Hargreaves was grounded; threw the emphasis on evidence, not the interests of lobbyists, when making future policy (e.g. each pirated download did not equate to a lost sale); and highlighted the importance of drafting policy fit for the digital age.

Debate was fairly balanced. I mentioned one of the findings of the SSRC report Media Piracy in Emerging Economies - availability and price played a big role in dissuading consumers from downloading infringing content; and the SSRC report suggested it was possible to compete with free.

Of course a fair few participants were aligned to a more traditional belief that content creators were being wronged, and governments should go to any length necessary to enforce the law. I got the opportunity to challenge this view, raising the cost and effectiveness of enforcement, together with the wider impact of legislation (e.g. the chilling effect on free and open internet access if intermediaries such as cafes, hotels and libraries become liable for what the end-users download); points I want to see considered alongside the estimated economic benefit of anti-piracy laws.

Even the representative from the Department for Culture, Media and Sport had a pragmatic message - that legislation alone was rarely the answer, proportionality is important, fundamental rights need balancing, etc.

I would normally say: 'actions speak louder than words!' But I'm frequently told by a close contact not to blame the DCMS for implementing the challenge set by parliament in April 2010 - since I'm in such a conciliatory mood today I won't stick the boot in... right now!

I couldn't argue with one participant when they said,"whatever you think of the Digital Economy Act, at least the fact that it was enacted has forced us all to have this debate." (At what price, though?)

So there you have it. I've been "bought" by a free ticket and sandwich lunch into writing something positive about a group representing rights holders. BPI, my inbox is always open! Many thanks to FAST deputy chairman Julian Heathcote Hobbins and host Mayer Brown LLP.